Complainant

Respondent

Parties

Alan  English

Swissport Ireland Limited 

Representatives

Dermot O'Loughlin

Ciaran Loughran IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040108-002

28/09/2020

Swissport Ireland Limited is based at Dublin Airport. The company provides ground services for airline passengers and handles freight. The respondent employs 650 in Ireland. At the time of the layoff 546 employees were on layoff.

The complainant stated that he was unfairly selected for lay-off. The company failed to engage in any meaningful consultation with him. He had more experience and service when compared to those that were retained. The obligation is on the employer to be reasonable and not to arbitrarily and subjectively retain who it wishes and lay-off those who it wishes without reasonable cause. The procedures applied for off ramp staff and at the other Airports was entirely different and objective. Service played a key factor in determining who was kept on in those other work areas. The company stated that there was consultation with the Union on how the selection would take place and that it was agreed with the Union. That is not true. At the time the Union at local level had a view that the lay-off would be for a very short period; however, there was no consultation about the criteria that would be applied to lay-off staff and to decide who would stay.

The complainant was a supervisor in the Baggage Hall, he was capable of meeting many of the tasks detailed in a skills matrix used by the company to make decisions concerning who would be retained and who would be placed on lay-off. The matrix applied by the company was deficient and contained a huge number of errors that clearly led to prejudice concerning his  selection for layoff.

The employee’s contract and collective agreement provides for lay off:

 Clause 9. LAY OFF AND/OR SHORT-TIME The Company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment. You will receive as much notice as is reasonably possible prior to such lay off or short-time. You will not be paid during the lay-off period. You will be paid for hours actually worked during periods of short-time

The company applied a valid and reasonable process to select staff. The fact was the services that the company provided to Airlines was in meltdown arising from lockdown during Covid-19. It was a highly uncertain and rapidly changing environment. The company compiled a matrix of the skills and experience that it believed employees possessed and double checked that understanding with line managers of the relevant staff groupings. In the first instance the decision was made to retain Team Leads and to select based on proximity to the Airport and the requirement for maximum flexibility and the ability to meet requests to attend onsite at very short notice.

The complainant was a supervisor in the baggage hall. There was little or no work in that area; nor had he the most relevant skill set and experience regarding the mainstay of flights at that time, which related to cargo flights.

At the earliest possible time the complainant was requested to return to work. On or about the 28th of August 2021 he was requested to return to work initially on reduced hours of 28 hours per week as it was not possible to work on the pre-lay-off shift pattern as flights had not fully recovered. On or about the 10th of November 2021 he was requested to return on his full contracted terms and conditions. He continuously declined to return to work.

CA-00040976-002 Payment of Wages Act

The complainant maintains that no meaningful consultation has taken place and arising from the employer’s unreasonableness the decision to place him on lay-off was in breach of his contract.

The complainant stated that the fact that a skills matrix was used only became evident when evidence under oath was given by the senior manager tasked to implement short-time working and layoff.

The  complainant stated that while the respondent employer stated that the Union was involved in consultation, yet an email from the shop steward and evidence given at this hearing by that shop steward demonstrated that little or no consultation occurred.

The employer retained employees who had less experience and service than the complainant.

The senior manager who made the decision gave evidence surrounding the circumstances that prevailed when she was forced to decide to lay-off most of the service workers in her large operation. That was a very difficult decision and was necessary as the company had few Airlines to service based on the severe flight restrictions that were imposed on or about March  20th 2020. The situation was volatile and literally changing by the hour. Cargo flights would continue and that informed who would be required to be retained initially. Team Leaders who were authorised to work on such flights in the first instance gave the company the greatest flexibility. The fact that flight times and volumes was also volatile meant that proximity to the Airport was important and the commitment from the employee to be flexible.

 The company compiled a skills matrix to assist in the making the right operational decisions. That matrix was not perfect; however, the line management who knew their staff also informed who should be retained and who should be placed on lay-off. The fact was a lot of support staff were already offsite arising from the public health regulations. The information while not complete was checked and balanced with line management’s knowledge of the crews that would be kept on and those employees who would be placed on layoff. Dublin is a much more complex Airport than the other areas cited by the complainant, where service would appear to have been the main criterion to be used. That criterion could not be use in Dublin based on the necessity to match skillset and experience to the actual flights landing at the Airport.

Consultation did take place with the Union and while management made the decision regarding who would be retained and who would be placed on lay-off the Union knew lay-offs would be required. Other companies did respond differently. However, this company based on its operating model could not sustain the haemorrhaging of cash and its best route to survival was to exercise its right to place staff on layoff.  This employee was offered reduced hours in August 2021 and refused to accept those hours and again refused to return to work on their full contract terms in November 2021. That refusal was based on a premise that until the company could fully honour his contract terms he was not bound to return to work. That is an argument with little merit nor does it reflect what is contractually the case.

Section 5 of the Payment of Wages Act provides for the following:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:

However a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.

Hedigan J in Lichters affirmed that a discretion is not unfettered:

In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -

"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."

He went on say that

10 6.9 Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did

The evidence of the senior manager who was tasked with overseeing the retention of staff and who would be placed on layoff was credible and honest. Based on the test as elaborated upon in the case law, I do find that the manager had a discretion to lay off the complainant and that she exercised that right properly and also met the threshold as set down by the courts that it was within the band of reasonableness, as it cannot be sustained that no reasonable employer would have acted as the defendant did.

The facts show that the employee refused to return to work when reduced hours were available and later refused to return to work on full hours. That behaviour is inconsistent with the proposition that the company failed to allow him to continue working in March 2020 rather than placing him on lay-off when that would have been conditional on flexibility and no guarantee regarding hours of work. The employee’s position is not credible when the facts show that he was subject to a contractual layoff clause without pay and that the senior manager tasked with making that decision having regard to all the circumstances acted reasonably.

Based on the facts no payment properly payable to the complainant has been unlawfully deducted from his wages

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

The matter in dispute relates to non-payment of wages arising from a claim that the complainant was unlawfully placed on lay-off without pay. I have determined that the employer had in fact a contractual right to place the employee on lay-off without pay and exercised that discretion reasonably.

The complainant lodged this complaint with the WRC on the 28th of September 2020. The unlawful deduction alleged to have occurred is detailed in the complaint form as follows:

The complainant was laid off in April contrary to the terms of his contract and as a result of same he did not receive his gross salary since then and as stated above. Mr English has been receiving the Pandemic Unemployment Payment in the meantime

The complaint as framed in the complaint form lodged with the WRC is properly before me commencing in April 2020.

Hogan J. in HSE v John McDermott [2014] addressed the meaning of section 6(4) of the Payment of Wages Act relating to the time to present a claim as amended by section 41(6) of the Workplace Relations Act 2015:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The construction of s. 6(4) of the 1991 Act

12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, *within the period of 6 months beginning on the date of the contravention to which the complaint relates*. The first thing to note is that no special meaning has been ascribed to the word *contravention* by the 1991 Act, so that it must be given its ordinary, natural meaning.

13. We may next observe that the actual language of the sub-section is clear, because it is the words *contravention to which the complaint relates* which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a *contravention* of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate *contraventions* of the 1991 Act during that period.

14. Yet the relevant statutory language takes us somewhat further, because the key question is the *date of the contravention to which the complaint relates.* In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention *to which the complaint relates.* As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning *on the date of the contravention to which the complaint relates*, the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way

The complaint form while containing a date commencing on the 2nd of February 2020, this in fact was corrected at the hearing  concerning payments for the period commencing  22nd of March 2020; which was payable in April 2020. Any unlawful deduction; therefore, contractually would arise from April 2020.  Based on this amendment the complaint as framed was made on  time based on the original date of lodging the complaint form in September 2020 regarding a contravention in April 2020.

CA-00040976-002 Payment of Wages Act

The evidence of the senior manager who was tasked with overseeing the retention of staff and the layoff of staff was credible and honest. Based on the test as elaborated upon in the case law, I do find that the manager had a discretion to lay off the complainant and that she exercised that right properly and also meet the threshold as set down by the courts that it was within the band of reasonableness, as it cannot be sustained that no reasonable employer would have acted as the respondent  did.

The facts show that the employee refused to return to work when reduced hours were available and later refused to return to work on full hours. That behaviour is inconsistent with the proposition that the company failed to allow him to continue working in March 2020 rather than placing him on lay-off when that would have been conditional on flexibility and no guarantee regarding hours of work. The employee’s position is not credible when the facts show that he was subject to a layoff clause without pay and that the senior manager tasked with making that decision having regard to all the circumstances acted reasonably.

Based on the facts no payment properly payable to the complainant has been unlawfully deducted from his wages

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

The matter in dispute relates to non-payment of wages arising from a claim that the complainant was unlawfully placed on lay-off without pay. I have determined that the employer had in fact a contractual right to place the employee on lay-off without pay and exercised that discretion reasonably.

I determine that the complaint is not well founded as no deduction has been made from the wages of the complainant that were properly payable to him for the period claimed commencing on the 2nd of April 2020.

Lay-off